Ed Esposito - SoundCloud Audio

Tuesday, August 30, 2011

UPDATE Triumph of the First Amendment

Last week, we were still scratching our heads over the story out of Cincinnati following a Town Hall meeting from Congressman Steve Chabot, where his staff and a Cincinnati police officer confiscated video cameras and cellphones from citizens attending his public meeting -- in a public space.

To say the imagery of police action stopping the open exercise of the very First Amendment to the U.S. Bill of Rights was extraordinary, especially in our backyard. The policy was quickly modified, but still left unsaid (at least in this writer's view) is the severe dampening impact and unconstitutional behavior of a police officer, sworn to uphold the law, using his power of authority to strip citizens of their rights.

At least in Boston that question has been answered.

The U.S. District First Circuit Court of Appeals weighed in on the 2007 case of Simon Gilk of Boston who, exercising his First Amendment rights to record police arresting a suspect on Boston Common, was arrested for violating wiretap laws among other charges.

Yeah, that Boston Common. Boston's Central Park. With Common to denote it's perhaps one of the ultimate of public spaces in a city often described as the "Cradle of Liberty."

The Commonwealth quickly dropped some of the charges, and a city judge dumped the rest. Which shows the power of the courts when someone with a law degree gets involved. Unfortunately, officers don't have someone with a law degree by their side when making decisions. Despite dropping the charges, Gilk felt it left open the power of the police department to detain, question, and arrest anyone exercising their First Amendment right.

Here's a big problem for the police: Gilk is a lawyer. He's not just some regular citizen recording from their front yard, such as Akron's Sarah Watkins, who was arrested for doing the very same thing from her own property earlier this year. Gilk's story bears watching in this video from the American Civil Liberties Union; it includes Gilk talking about his experience as well as the actual video he shot with his cellphone:

Just to be clear, here's what the First Amendment looks like -- with my emphasis in boldface:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." - First Amendment, U.S. Constitution, Bill of Rights

Seems pretty clear this section of the bedrock of our laws targets government from stopping citizens from exercising in their freedom of speech rights. But, and not surprisingly, some law enforcement agencies take the position citizens using cameras and microphones on public right-of-way violates the rights of the public employee.

A federal court now says otherwise, with a decision that addresses the narrow and specific issue of whether Boston's police officers violated a citizen's civil rights through the action. The answer is yes, they did. Such actions by the public "fits comfortably" with the principles expressed by the First Amendment. Police should not have arrested the man with the microphone. By extension, police shouldn't stop citizens from using cellphones, cameras or recording equipment to show them at work.

Oddly enough, officers defending themselves in the now-federal case argued they shouldn't even be questioned because they had qualified immunity. Boston's federal appeals judges tossed that issue aside; qualified immunity doesn't apply when denying civil rights, and make no mistake: the freedom of speech is a basic civil right. Actually, it's the first.

The First Circuit noted the issue in it's narrow form: "...is there a constitutionally protected right to videotape police officers carrying out their duties in public?" The court says the answer is "...unambiguously in the affirmative." For anyone needing a translation, that means yes. It's your right. And police or other public officials stopping you from doing so, even to the point of arrest, are violating your rights.

The First Circuit spreads it's judicial authority over Massachusetts, Rhode Island, Maine, New Hampshire, and Puerto Rico. It's opinion does not cover the ten other districts serving the rest of the United States, but it sends an important and powerful message to those who would muzzle the ability of citizens to exercise their most basic of rights.